Thread by @DefenseAssange

Julian Assange's extradition hearing, day 6 thread. We expect to see more testimony from @Reprieve attorney Eric Lewis today. #AssangeCase

Yesterday's report: Eric Lewis: Julian Assange shouldn’t be extradited, would face solitary confinement in the United States

assangedefense.org/live-blog-entr…

Prosecution resumes cross-examination of Lewis. Picks up where we left off, at the case of Ahmad in the European Court of Human Rights, dealing with solitary confinement in the United States -- believe that ruling is here: hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-110267%22]}

Reviewing Ahmad case's treatment of solitary confinement, appears prosecution is trying to undermine Lewis' claims about solitary: that Assange is likely to face it, that it's applied arbitrarily, that it's widespread, etc

Prosecution says it's the defense argument that Assange would go to ADX in Colorado, the prosecution's argument is that we don't know yet where he'll go. Lewis: "I understand that's the government's position but I disagree"

(Background: report from 2012, updated in 2017, by @theCCR: 'Solitary Confinement: Torture in U.S. Prisons'
ccrjustice.org/home/get-invol…)

Reviewing Lewis' claim in his witness submission that US prisons are failing to protect inmates from COVID19. Prosecution asking if Lewis has visited the Alexandria Detention Center since the pandemic started - he says no

Prosecution notes a report from Sept 3rd saying only 1 inmate at ADC has COVID19. 'So all your statistics about other facilities are irrelevant are they not?'

Lewis: nearly 12% of the prison population has COVID, he could be sent to another facility

Prosec: are you seriously trying to help the court, Mr Lewis, or simply trying to find every fact you can to help your opinion?

Lewis: trying to provide answers that are complete

Prosec citing an article from Lewis from 2019 in which he says Assange could face up to 340 years in prison. Lewis says it could have been his error, he confused the fact that Espionage Act violations used to carry 20 year sentences, reduced to 10. But the answer is 175 years

Prosecution: the 175 years is really a soundbite from the defense isn't it? You don't really think he'll be sentenced to 175 years do you?

Lewis: I do think it's a possibility and I can explain why

Prosecution: no that's OK, we'll get to it

Defense rises to ask if Lewis can be allowed to answer it. Prosecution says 'if he can just keep the answer to 5 minutes'
Judge: well there's no time limit

Judge trying to get prosecution to understand/agree that open questions can take long answers

Prosecution: doesn't matter how I ask he'll answer that way anyway

Lewis explaining why it's reasonably likely Assange will be sentenced to 175 years in prison. The government has said this is the biggest leak publication in history. Has cited adversaries benefiting. Chelsea Manning's case, govt asked for 60 years. Assange's max is 175 years

The sentencing guidelines are advisory. Tried to work out the likely factors. Base offense under the guidelines is 30 years--

Prosecution interrupts: it's 24

Prosec reviewing sentencing guidelines and likelihood of longest sentence. Prosec discussing other Espionage Act cases -- refers to case of [Jeffrey] Sterling

(Background: CIA Officer Jeffrey Sterling Sentenced to Prison: The Latest Blow in the Government’s War on Journalism thenation.com/article/archiv…)

Prosecution says Kromberg's filing says only a small percentage of defendants receive the statutory maximum sentence

Prosecution reviewing statutes/guidelines: sentence must indicate seriousness of offense, consider nature of circumstances, etc -- trying to undermine Lewis' claim that Assange is likely to receive the highest sentence of 175 years

Because Chelsea Manning's sentence was mentioned, reviewing differences between sentence in military court and that of federal civilian court, trying to argue it shouldn't be considered a relevant factor/comparison here

Prosecution references Sterling, CIA agent, disclosed that the agency gave flawed design plans to Iran. Prosec says Sterling's maximum sentence was 130 years. His sentence was 42 months, wasnt it?

It's what the court sentenced him to but not what the government wanted

Prosec: so why didn't you give a realistic estimate for what Assange would face rather than a soundbite of 175 years?

Lewis: I said what the maximum was, said what the guidelines were, didn't think I was allowed to go beyond that. Sterling's sentence was below guidelines

Jeffrey Sterling (@S_UnwantedSpy) in March 2020: 'Reject Using My Unjust Conviction Against Julian Assange' laprogressive.com/jeffrey-sterli… h/t @auerfeld

Sterling also spoke at Courage's panel event: “What would Julian Assange face in the US?”
defend.wikileaks.org/2020/08/05/wha…

Prosecution reviewing other Espionage cases, including Terry Albury -- contrasts Top Secret material there to Secret material in Assange's case

(Oct. 2018, Ex-Minneapolis F.B.I. Agent Is Sentenced to 4 Years in Leak Case nytimes.com/2018/10/18/us/…)

Prosec: what is the longest sentence ever imposed for a prosecution of a disclosure to the media? Asks Lewis to agree it's 63 months [Reality Winner]

Lewis talks about other Espionage Act cases, accepts that's highest for disclosure to media

Prosecution talking about district judges in the US, says they have life tenure to ensure independence

Are you familiar with the district judge in Assange's case, Claude Hilton?

Haven't sat before him

He was appointed in 1985, agree he's experienced? yes

Any reason to think he'd sentence unfairly?

Lewis: He's known as a big sentencer, I'm not questioning his integrity but wouldn't want client in front of him

Federal judge Claude Hilton, Eastern District of Virginia: ballotpedia.org/Claude_Hilton

10 minute recess. #AssangeCase

Claude Hilton, who would be Assange's judge in the US, threw Chelsea Manning in jail back in March 2019 for refusing to testify against WikiLeaks in a secret grand jury: washingtonpost.com/local/public-s…

Back from recess. Lewis: there's never been a successful prosecution of a publisher of information related to national security

Prosecution brings up Lewis' article from 2019 where Lewis made error on the sentencing number -- 'As an American lawyer, I don't want to see Julian Assange extradited to my country' independent.co.uk/voices/julian-…

Prosecution brings up AIPAC case, Steve Rosen & Keith Weissman (Background: nytimes.com/2009/05/02/us/…)

Prosec brings up US v Morison (opengovva.org/foi-opinions/u…), says the Supreme Court rejected arguments the charges were unconstitutionally vague. Lewis says this was the leaker, not the publisher

Prosecution talking about First Amendment protections in Espionage Act cases, saying they are not categorical, courts say they must be weighed against national security interests

Lewis agrees there is a balance but the bar for breaching 1A protections must be extremely high

Now talking about Pentagon Papers case, attempted injunction against publishing

Lewis brings up that Ellsberg was charged with disclosing names of actual CIA agents, not foreign nationals

Prosecution distinguishing in cases between government employees who had legitimate access to the leaked info and those not in government, Chelsea Manning would fall in the former, Assange in the latter

Prosecution trying to undermine Lewis' claim that the Pentagon Papers case is the most relevant case to judge balancing of First Amendment concerns & national security interests

Prosecution: I challenge you to name one single precedent that publishers can't be prosecuted

Lewis: let me start with the fact that Eric Holder and Matthew Miller decided that the publisher couldn't be prosecuted in this case

Lewis lists Pentagon Papers, US v Hayes, district cases

Lewis: there is an unbroken line of (hard to hear) courts declining to prosecute publishers

Lewis reminds the court that Kromberg has said Assange would not get First Amendment protections

Prosec: is it correct that the Supreme Court has never held that third-party publishers are precluded from prosecution?

Lewis: I've answered that

Do you accept that the government can prosecute government insiders for leaking?

Yes

And third parties are not entitled to help government insiders, and that'd include journalists?

No - journalists are to protect their sources, and under these arguments every national security reporter back to Seymour Hersh would be criminally liable

Prosecution: you agree journalists don't have a right to (hard to hear) enter the White House?

Lewis: you mean jump the fence? don't believe so no

Videolink notes: Eric Lewis' sound is particularly hard to hear. We've been given one pan over to Julian, who was leaning against the wall, listening, mask on.

Apologies for delay, especially hard to hear exchange over what previous courts in US and UK have ruled and whether Lewis has reviewed political science articles, or whether his opinion is "conjecture"

Prosecution refers back to Mark Feldstein's testimony on Obama administration -- whether it was a decision *not* to prosecute or whether the Obama admin did not take a decision either way

Do you agree with Professor Feldstein that a decision was not taken?

Eric Lewis: No

Prosecution reviewing Feldstein saying while the whole tenor of the Obama admin was not to prosecute, the admin did not take an opinion either way -- do you agree?

Lewis: I believe it reflects a misunderstanding of the way the prosecution process works

There appears to be an understanding of how the justice department works that does not reflect my experience

Prosecution questions his experience: do you have any first-hand knowledge of the Obama admin deliberations?

No

So only based on news articles?

I've also viewed video interviews, reviewed scholarly articles

Prosec: Matthew Miller left DOJ in 2011, 2 years before he gave the interview to the Washington Post?

Lewis: yes, but he would have had contemporaneous information based on what I know of DOJ politics and his relationship. He wouldn't have spoken without running it by Holder

Establishes that Lewis hadn't spoken to actual fed prosecutors in this case

Believe federal prosecutors operate according to guidelines?

Lewis: no, I believe it is a top-down bureacracy, prosecutors are essentially directed

Lewis cites former prosecutors and judges who have said that federal prosecutorial guidelines are not followed

So federal prosecutors are acting in bad faith?

Lewis: Jeff Sessions pressured EDVA to bring the case. Not saying individual prosecutors are acting in bad faith, I'm saying the department is highly politicized and many Americans would agree with that sentiment

Prosec talking about Lewis statement discussing theory that Trump wants to distract from DNC leaks helping Trump's election campaign. Lewis says it's a politically motivated prosecution with changing views, wanted to execute back in 2010-11, then liked DNC leaks, now prosecuting

Prosecution suggests Lewis' opinion is "pure conjecture"

Lewis: extensive body of literature about this president's concern about his own legitimacy

Discussion over the Classified Information Procedures Act, which would apply in the US case if Assange were extradited: law.cornell.edu/uscode/text/18…

Govt arguing CIPA is invoked to protect national security information. Lewis says it also makes it very difficult on the defendant, cites overclassification in the US

End of cross-examination. Ed Fitzgerald re-examining for the defense

Defense asks Lewis to comment again on his determination that the Obama admin decided not to prosecute Assange, not simply that the Obama did not make a decision either way

Lewis supports that opinion with Washington Post article as well as Eric Holder's MSNBC interview - opinion is that the Obama admin decided not to prosecute a publisher

Also cites Matthew Miller (DOJ spokesman) “The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists..."

"....“And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

Lewis talking about how reliable the Washington Post article is (washingtonpost.com/world/national…) -- says Sari Horwitz is a 4-time Pulitzer winner, no one denied it, no reason to not find it credible

Defense: you talked about 1,000 prosecutors writing about interference in the Stone case, is that right?

Yes, may have been more, including #2 under Bush, immediate predecessor to AG Barr in that position

As to whether DOJ reached these decision in 2018 and May 2019 independently or not?

Lewis: Trump has said he could do whatever he wants, and AG indicates that prosecutorial discretion rests with the president.

This is the unitary executive theory, it is not an accepted theory, it's a fringe theory but the attorney general expressed it. Yes the guidelines say you must be independent but clearly not the way AG Barr views it, he considers the DOJ the prosecutorial hand of the president

Lewis: it's hard to overemphasize how out of keeping with the DOJ's history that AG Barr's views are. Not questioning integrity of lower-level prosecutors, but fed prosecutors are acting because AG asked them to do so

Reviewing district judge in SDNY was made to step down, political interference w/ regard to Roger Stone

Assange would be prosecuted by those specifically ordered by Attorney General under Trump?

Yes presuming Trump is still in office at such a time

Lewis: They only close investigations due to limitation period ending -- always leave it open in case something new comes in. That's not what happened here -- factual matrix is fixed. Nothing changed here from 2011 to 2017. Reports that the case is dormant when Trump admin began

and statements from EDVA prosecutors who appear to be pressured. Prosecutor James Trump (no relation) and Grooms put on the case. Jeff Sessions said to look at this case again

both prosecutors said they disagreed with the decision to prosecute under the Espionage Act. No new evidence since Obama admin.

Lewis: Evidence hasn't changed. Witnesses haven't changed. First Amendment hasn't changed. The first indictment they tried to get around the New York Times problem. Only explanation is there has been a change in administration

CIA whistleblower Jeffrey Sterling on the prosecution using his case and sentence against Assange:

https://twitter.com/S_UnwantedSpy/status/1305829477319147520

Defense: is Mr Kromberg more qualified than you are to talk about prison conditions?

Lewis: I would be surprised if he has spent more time in prisons than I have. When prisoners aren't happy about their treatment, they don't go to Mr Kromberg, they go to me

I have spent weeks and weeks at Guantanamo Bay prison. It's up to the court to determine if I'm qualified but I've reviewed lots of articles and my experience to comment

Former client of Lewis', Abu Khattala, spent 3 years in pre-trial detention. Likely Assange would as well?

Lewis: if all WikiLeaks documents are viewed as classified, which the govt has said they are, it will take a very very long time

If someone was in admin seg and subject to SAMs, that's tantamount to solitary confinement?

Lewis: yes

UN Mandela rules for the standard treatment of prisoners -- solitary confinement refers to more than 22 hrs / day without meaningful human contact. Real risk someone in ad-seg and under SAMs would meet that definition?

Yes. Certainly was the case with Mr Abu Khattala.

Ability to challenge confinement conditions is very restricted, particularly in pre-trial, particularly w/ national security info case

Reviewing effects of solitary confinement. Mental health is a particular issue. There was a General Accountability Office on ADX, says US Bureau of Prisons couldn't say how many in solitary, adverse affects on inmates are alarming

GAO report: Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated Housing gao.gov/assets/660/654…

Lewis: 2/3 of suicides and incidents of self-harm in US prisons take place in segregated housing

Related background, see @thejustcampaign's thread on US prison conditions:

https://twitter.com/thejustcampaign/status/1305468921152069635

Defense reviewing prosecution's claim about US prisons offering mental health assistance to inmates diagnosed on the autism spectrum.

Lewis: doesn't apply to those under SAMs

More from CIA whistleblower Jeffrey Sterling:

https://twitter.com/S_UnwantedSpy/status/1305834982804541440

Adjournment now for an hour. Will finish defense re-examination of Eric Lewis. Next defense witness after that will be Thomas Durkin, a former federal prosecutor.

#AssangeCase

Court resumes, defense finishing re-questioning Eric Lewis. Tell the court how you arrive at your determination that if convicted Julian Assange would face the rest of his life in prison.

Lewis reviewing sentencing guidelines. Adjustments made to the 2nd superseding indictment.

While previous indictment just involved Chelsea Manning and Assange, newest indictment involves several others - takes allegations against Assange to next sentencing level

Next adjustment is with respect to 'Teenager' in the indictment - whose age is relevant because if a minor is involved in the offense this also takes potential sentence up a level

Another adjustment to the indictment deals with whether the alleged crime involves a "special skill" - Assange's technical abilities take the offense level up as well

As the indictment is charged, there's a suggestion that attempts were made to conceal the identity of Chelsea Manning -- that could qualify as 'obstruction' and could add to sentence

Final adjustment in the superseding indictment -- charges on State Dept cables that disclose ID of sources on the ground, but also of US officials, including people in the Embassy -- if someone named is a govt employee, that brings sentencing up a level

The court has the power to accumulate the counts, meaning sentences are served consecutively rather than concurrently, takes this to a sentence of life in prison - reduced to the maximum allowed of 175 years

Courts are allowed to exceed the sentencing guidelines -- have to provide written reasons for going above or below the guidelines

3 points on Chelsea Manning's sentence -- 1) sentenced to 35, 2) govt asked for 60 years, 3) was charged with 1 count that threatened life in prison (or death if govt sought it) but she was acquitted

So is there a real risk that if convicted Assange would spend the rest of his life in prison?

Eric Lewis: Yes

Unbroken line of courts protecting right to publish?

Yes, has never been a prosecution to the end with respect of any publisher of national security information.

End of Eric Lewis testimony. #AssangeCase

Defense will next call Mr Durkin, back in 10 mins

Defense questioning Thomas Durkin, practiced criminal law in the U.S. for 47 years.

Durkin: "Very likely possibility" that Mr Assange would be sentenced to the rest of his life in prison

Durkin brings up Manning's trial and sentence, likely the govt to think Assange is more liable than Manning, likely a longer sentence

In sentencing, can the court take in relevant conduct of which he isn't convicted but which the government alleges anyway?

Yes

This can include conduct unrelated to the charges and can even be conduct he's acquitted of -- can be used in aggravation, in sentencing. Court has "almost unfettered discretion" as to what it can refer to in sentencing

Affect of this threat of extremely long prison sentence w/ regard to a plea deal.

A timely plea deal takes sentencing down a level

Durkin: so there's a built-in incentive to plead guilty. Penalized for going to trial, referred to as a "trial tax"

Brief recess -- Tom Durkin's video is frozen, will have to work out technical issue

We're back. Would leniency from a plea deal require full cooperation with the authorities?

Most likely would not be anywhere near the same as without cooperation.

Could cooperation include revelation of sources?

Absolutely

So they can require you to provide any information they want, including naming sources of information, to decide that you're fully cooperating?

Yes

Durkin: more likely than not that there were political considerations to charge him by the Trump administrtion

Does the grand jury system provide adequate protection against an overzealous or politically influenced prosecution?

Durkin: No. The decision to charge in case with nat'l security info like this is made in the nat'l security division of the DOJ.

A grand jury deciding not to indict is virtually unheard of. Happens once maybe every few years. Defendant has no right to appeal in grand jury system.

Durkin: my calling it a political prosecution is mostly based on the change in administration and new decision to charge

End of defense questioning of Tom Durkin

James Lewis cross-examining Durkin for the prosecution

Prosec: your opinion was sought relating to fair trial issues in the U.S.?

Durkin: Yes

Are you saying Assange will not get a fair trial in the US? Or just saying it would be difficult?

I don't believe he would be able to get what I would consider to be a fair trial In the US

Discussing whether Assange would be able to view classified info under CIPA if sent to the US.

Durkin: the defendant wouldn't be able to review classified evidence. Govt could declassify but I don't accept Kromberg's statement the defendant would get access to the SCIF

Durkin cont'd: that is not my experience whatsoever, and I don't know how Assange would be granted a security clearance to review the material

Prosec: where does your understanding that this case involves an unprecedented amount of classified evidence come from?

Another affidavit, believe Mr Lewis'

So the defense - but have you heard that from the prosecution?

Don't believe so. Distinction in my statement between classified evidence and discovery material

Do you know what issues Assange's defense will bring at trial?

No, I'm not his lawyer.

So how do you know there will be a problem with unprecedented volume of classified materials?

Large volumes of discovery is always a problem for the defense.

It's a huge cost consideration, requires large staff of non-lawyers to help deal with volume, and part of the issue is you have to review it with the client. Particularly difficult when the defendant is detained pre-trial.

Prosecution attempting to establish that because the materials were published 10 years ago and Assange "knows all about", he won't have issue with reviewing the materials in pre-trial defense preparation

Trying to establish that because Durkin isn't on the defense team, he won't know what discovery will be.

Durkin: think I got that from the govt.

Prosecution: think you misread, we said 'unprecedented scale of the disclosure' not the discovery/evidence

(Prosec rephrases exactly what they said in their opening note re what is "unprecedented)

Going back to sentencing. When talking about the "trial tax" - that's simply a discount for a guilty plea, is it not?

That's right

Are you saying there is anything wrong in that?

I'm not saying the only trial tax is the 3 points off (in sentencing table), I'm saying that is one that is built inherently into the trial guidelines...

...but because of how draconian the guidelines are (hard to hear), it's very hard to go to trial

Base level of 30 in sentencing. If Assange plead guilty, and was given a discount, and the judge didn't accept the enhancements, it goes down to 27 right?

Durkin: but he doesn't know whether the judge will include the enhancements, judge has to rule on each one's applicability

(Background: An Overview of the Federal Sentencing Guidelines (PDF) ussc.gov/sites/default/…)

Prosec, re: whether the prosecution is politically motivated -- main reason was the decision to move forward?

Yes that's correct

You rely on others who say there'd been a decision by the Obama administration not to prosecute. But I'd like you to comment on testimony from Prof. Feldstein here last week

Again this is about the distinction between "deciding not to prosecute" and "not deciding to prosecute" (ie did not withdraw possibility of prosecuting).

Would you accept Feldstein's interpretation as correct?

Durkin: Not necessarily. ...

... What appears to me to have happened is the Obama admin, under Holder, made a decision not to charge Mr Assange. Obviously they can always go back if the statute of limitations doesn't apply. Seems very clear to me the Obama admin decided not to prosecute.

Kromberg's claim that there was an ongoing investigation doesn't seem credible to me. Seems to me there was a sound reason for the Obama admin not to prosecute. They decided not to go ahead, and for Donald Trump's political purposes they decided to reinstate the charges

And the grand jury was not the one to charge Mr Assange, it was the US attorney's office

Prosec: but you don't have first-hand knowledge of the deliberations under Obama admin or Trump admin?

Durkin: Of course not, govt hasn't waived their deliberative rights

So only based on news articles?

Durkin: Of course

But you haven't spoken to the officials named in those news articles, eg Matthew Miller in the Washington Post?

Durkin: No

So your opinion is based on what is in those news reports?

Durkin: Of course

Prosec establishes that Durkin is paid for his time as an expert witness. Can you say how much you're paid?

Durkin: Only if the judge will redact it so my other clients don't see...

Prosec and defense both laugh

End of cross-examination. Defense re-questioning Durkin

WaPo article on decision not to prosecute, Matthew Miller's statement that they're not prosecuting because they'd have to charge journalists as well. Find the sources in the article reliable?

Yes, and not uncommon for the Justice Dept to get positions out into the press this way

Reasonable to rely on reporting that there's no charges under Obama admin?

Durkin: yes not only that but there's nothing contradicting it around the time. If govt sees info in press it considers wrong, it sees to it that it gets corrected

Not uncommon for leaks to occur, and if the govt doesn't like the way reports are coming out, they will see to it that other leaks get made that correct it. I guarantee you if the Obama admin wanted to indict Assange they would have corrected those stories in some way.

Back to other WaPo article, Trump admin prosecutors disagreeing with the decision to indict Assange under Espionage Act. Govt says these are pure press reports, defense asking Durkin to establish why they are reliable

How does prosecution offer you a plea deal that you can't refuse?

By offering a deal for counts that cap exposure much lower, giving judge more comfort going lower with sentence

What's the consequence of the prosecution having an 18-count espionage indictment at their disposal?

Someone mentioned 175 years, I think they could get that high just in terms of potential maximum sentence. The judge can sentence consecutively.

End of Tom Durkin's testimony. Tomorrow we'll hear from Mr Goetz. Also planning to hear from Mr Ellsberg, who's in California, 8 hours behind, so may hear another witness before him. #AssangeCase

Tomorrow: John Goetz is an international investigative journalist who worked with Der Spiegel in collaboration with WikiLeaks in 2010–2011.

End of today's hearing.

#AssangeCase